McFadin v. MacGreal, 25 Tex. 73

McFadin v. MacGreal

25 Tex. 73 | Tex. | 1860

Wheeler, C. J.

There is one obvious view of this case, taken by counsel for the appellant, which, in our opinion, must be decisive of it, and will supersede the necessity of further inquiry; and that is, that the recovery is against a person who was not a real party to the suit, and has had no opportunity afforded him to make his defence. He has been treated by the defendant as plaintiff, and the recovery obtained against him upon a plea in reconvention. Did he occupy a position upon the record which entitled the defendant to reconvene upon him? We think clearly not. He had asserted no demand of his against the defendant, to which the latter could oppose a plea in set-off and recenvention. He was not the party plaintiff in the suit, for any of the purposes of the litigation. Nothing is asked of the court in his behalf. Nothing can be more clear than that, to ascertain who is the party plaintiff in a suit, we must look to the petition, and to that alone. It is only by the petition that a party can become a plaintiff in the District Court. Looking to the petition, it is free from doubt that Davis, for whose sole use the suit is brought, is the real party plaintiff, and McFadin but a merely nominal and formal party. The latter, so far as the petition discloses, has no interest in the suit, or in the matter in litigation. It is Davis who uses his name—it may be without his knowledge or consent—who is the real plaintiff; and the only party who seeks to litigate in that capacity, his own demand against the *79defendant. As the assignee of the judgment, he alone had the right to control it, and to sue upon it; and his assignor could no-more control the bringing or the conduct of the suit, than he could any other use his assignee might see proper to make of the judgment. The latter had the right to use his name, if he saw proper, in bringing the suit without consulting him. The former could take no benefit by the suit, and he incurred no liability on account of it, unless, possibly, for costs. In case of the death of such nominal party, his legal representative is not required to be made a party; but the suit may be conducted to judgment by the real party in interest, without further notice of him than the bare-suggestion of his death upon the record. (Hart. Dig., art. 701.) His name is used by his assignee, as mere matter of convenience in bringing the suit; and he is not suffered to be present in court, either in person or by attorney, or to be cognizant of the proceedings in the case. He is a merely nominal party upon the record. Before a judgment can be recovered against him, it is very clear that he must be made a real party. This can not be done by the allegations merely of either of the parties litigant. It can only be as any other party is brought into court and subjected to its jurisdiction over his person, by the service of process upon him. This was not done. The appellant did not make himself a party litigant, nor was he made a party, in any mode known to-the law; and it is immaterial what allegations the answer contains,, or what the proof was, the judgment having been rendered against one who was not the real party to the suit, and did not occupy that attitude upon the record, is coram non judice and void.

The view we have taken of the case might be supported by a reference to numerous authorities; but we deem it too obviously correct to require such support. In Pensylvania, where they have no court of chancery, it seems that one whose name is thus used by his assignee in bringing a suit, is not even liable for costs. (5 Serg. & R., 402-3.) It is said to be every day’s observation, that the assignee brings an action in the name of the assignor, without consulting him or even letting him know of it. (3 Bin., 312.) In our practice he has always been considered and treated as a merely nominal party, and not as the actor or real litigant, but as *80having in truth no concern with the litigation. He can exercise no control over the suit: he cannot dismiss it, or release the cause of action, or do anything to prejudice the right of the assignee. (1 Dallas, 139; 15 Mass., 485; 1 Wheat., 233; 20 Tex. R., 162.) It is plain, therefore, that he is not to be deemed, for the purposes of the litigation, a party to the suit; arid no recovery can be had against him without first making him a party, by the service of process upon him, so that he may be afforded an opportunity to appear and protect his interests. This not having been done, it results that the judgment is erroneous and must be reversed, and the cause remanded fpr further proceedings.

'Reversed and remanded.